The Marriage of Human Rights Codes and Section 15 of the Charter in Pursuit of Equality: A Case for Greater Separation in Both Theory and Practice
MacKay, A. Wayne, University of New Brunswick Law Journal
I. INTRODUCTION: FROM ENRICHMENT TO CONTAMINATION II. BACK TO BASICS: DIFFERENT INSTITUTIONAL ROLES AND APPROACHES a. CHALLENGING BENEFIT SCHEMES BLURRING THE LINES III. TESTS FOR DISCRIMINATION: SECTION 15(1) OF THE CHARTER AND O'MALLEY'S PRIMA FACIE CASE a. THE ANDREWS ERA: HAPPY UNION b. THE LAW ERA: STRAINS EMERGE C. CONVERGENCE ON GOVERNMENT BENEFITS d. THE LAW/DIGNITY HANGOVER e. THE KAPP ERA: NEW TESTS? IV. COMPARATOR GROUPS IN THE HUMAN RIGHTS CONTEXT a. ACADEMIC CONCERNS ABOUT COMPARATORS b. THE MOORE CASE c. CHILD WELFARE SERVICES FOR FIRST NATIONS CHILDREN V. AMELIORATIVE PRACTICES AND PROGRAMS UNDER SECTION 15(2) OF THE CHARTER AND UNDER HUMAN RIGHTS CODES a. THE DANGERS OF A TOUGH LOVE APPROACH b. PURPOSES VERSUS EFFECTS c. RATIONAL CONNECTION d. AMELIORATIVE OBJECT e. AMELIORATIVE/SPECIAL PROGRAMS VI. JUSTIFICATIONS FOR DISCRIMINATION: SECTION 1 OF THE CHARTER AND THE BONA FIDE JUSTIFICATIONS a. MEIRORIN/GRISMER ANALYSIS b. PARALLELS BETWEEN REASONABLE ACCOMMODATION AND SECTION 1 CHARTER ANALYSIS c. DEFERENCE IS CRITICAL VII. PRACTICAL IMPLICATIONS FOR EQUALITY SEEKERS: REMEDIES OF LAST RESORT a. ACCESS TO JUSTICE
I. INTRODUCTION FROM ENRICHMENT TO CONTAMINATION
Like many marriages, the equality provisions of the Charter of Rights and Freedoms and Canada's human rights codes began with the hope and expectation that the experiences of each one would enrich the other. Both legal structures pursue a fairer and more egalitarian society, and there was optimism that the two traditions would reinforce each other and make life better for victims of discrimination. In an evolving symbiotic relationship, the concept of substantive equality would be advanced and Commissions, Tribunals and Courts would collaborate in producing a more egalitarian Canadian society. While not stated in these grandiose terms, these were the seeds planted by Justice McIntyre in the first section 15 case of Andrews v BC Law Society. In Andrews, McIntyre J advocates building the Charter's equality jurisprudence on the foundation of Canada's experiences with statutory human rights codes. (1)
Unfortunately as with too many marriages, the union of Charter equality and human rights codes has not always been a positive one and the Charter has become more of a burden than a benefit to its statutory partner. Indeed, many now argue that the importation of Charter equality concepts into the interpretation of human rights codes has limited the goal of substantive equality and reduced access to justice for front line victims of discrimination. As Professor Leslie Reaume rightly argues, the nature of the Charter should be a source of enrichment for human rights codes and not a source of contamination.
[B]orrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory interpretation, and advances the purpose and quasi-constitutional status of the enabling statute. The objection raised in this paper is not to the interplay but to the manner in which Charter principles, specifically those articulated in the decision in the Charter, are imported and then allowed to dominate an analysis which should be driven first by the principles of statutory interpretation, and second by the jurisprudence which has developed specifically in the regulatory context. (2)
One of the ways in which the Charter might enrich human rights code jurisprudence would be in respect to theory. Both mechanisms are intended to reduce discrimination in Canadian society and advance the cause of substantive equality. Substantive equality takes account of differences where appropriate and recognizes that formally neutral rules can have adverse and discriminatory effects on vulnerable groups in society. …